The opposition has proposed to the coalition to advance two elements of the judicial reform––the reasonability consideration and the status of the legal counselors to the government, including the Attorney General––on condition that the coalition commits not to advance the judicial reform bill regarding the makeup of the committee to select judges until the end of the term, which may be as late as 2026, Reshet Bet Radio reported Sunday.
According to the report, the coalition is ready to accept the proposal, but only through October 2023, the end of the Knesset’s fall session.
This is not an empty gesture on the part of the coalition: Supreme Court President Esther Hayut is retiring in October 2023, and so the Coalition is offering to keep the selection of her replacement on the court according to the old system, which may also impact the selection of her replacement at the helm, based on the traditional seniority process.
The opposition is also offering a substantial concession, in two areas where the differences between the two sides have turned out to be minimal during negotiations at the President’s residence. Nobody likes the reasonability doctrine, which gives judges enormous powers to rule against legislation or action that are within the law, but in a manner that didn’t seem reasonable to the judge.
Justice Zvi Berenson defined it in AG vs. Dizengoff, 1959: “I would say that if the court finds that the secondary legislation is so illogical and intolerable that a reasonable person would not think that a reasonable minister would have been able to do it, then the court would have to say that the legislator never intended to give this power to the minister. The secondary legislation is unacceptable and is outside the scope of the government’s authority.”
But in recent years, judges have used the reasonability argument to rule against the letter of the law in an ever-growing number of cases, essentially turning the court into a legislative body on steroids.
As to redefining the post of the AG and the ministerial legal counselors, Gideon Sa’ar, the former justice minister who now heads the opposition negotiations team, has been pushing for dividing the AG’s office into the government’s attorney and the supervisor of the legal system, two contradictory rolls which have made Israeli AGs the most powerful unelected officials in the world.
The way things look now, the coalition will not give up its judicial reform, even if it would be willing to suspend it in exchange for two victories that are not minor by any means. As Minister of Culture and Sports Miki Zohar (Likud), put it Saturday night in a Channel 14 interview: if we don’t pass the judicial reform during this term, we should get ready for many long years on the opposition benches.